2. Under the facts of this case, that portion of an independent medical examiner's
report going beyond an evaluation of functional impairment cannot be
considered by an administrative law judge absent supporting testimony by the
independent medical examiner.

Before ELLIOTT, P.J., GERNON, J., and DAVID F. BREWSTER, District Judge,
assigned.

ELLIOTT, J.: Frito-Lay, Inc., appeals an order of the Workers Compensation
Board (Board) finding the Workers Compensation Fund (Fund) was liable for only 40%
of the award to Jeffrey Sims for a second injury. Frito-Lay argues the administrative law
judge's prior determination of 70% Fund liability should be reinstated. The narrow
question presented by Frito-Lay is whether the Board erred in ruling the administrative
law judge improperly considered the portion of the report of an independent medical
examiner regarding Fund liability without the doctor's supporting testimony.

We affirm.

The parties agree the Fund's liability is either 40% or 70%. The administrative
law judge appointed Dr. Bieri as an independent medical examiner pursuant to K.S.A.
44-510e(a), asking for an evaluation and disability rating of claimant Jeffrey Sims. Dr.
Bieri prepared a report containing the requested information, as well as his opinion on
liability apportionment. The opinion as to liability apportionment, although requested by
someone, was gratuitous to the administrative law judge's request. Neither party
deposed Dr. Bieri. Dr. Bieri thought the current injury would not have been suffered but
for the prior injury.

Dr. Wertzberger, who was deposed, stated the prior injury accounted for 40% of
the present injury. The administrative law judge averaged the two opinions (100% and
40%) and concluded the Fund should bear 70% of the liability.

In reversing, the Board ruled the administrative law judge improperly considered
Dr. Bieri's opinion regarding liability apportionment, noting the administrative law judge
had not requested any opinion on that subject. The Board ruled:

"Once the parties, [not the Fund], rather than the Administrative Law Judge, made inquiry of the doctor
regarding issues extraneous to those the Administrative Law Judge desired the doctor to address, Dr.
Bieri's function changed from that of providing an independent medical evaluation for the Administrative
Law Judge to that of providing expert witness testimony for one or more of the parties."

The administrative law judge requested Dr. Bieri's evaluation pursuant to K.S.A. 44-510e(a) and limited the request in accordance with that statute. K.S.A. 44-510(e) provides:

"If the employer and the employee are unable to agree upon the employee's functional impairment, such
matter shall be referred by the administrative law judge to an independent health care provider who shall be
selected by the administrative law judge from a list of health care providers maintained by the director. The
health care provider selected by the director pursuant to this section shall issue an opinion regarding the
employee's functional impairment which shall be considered by the administrative law judge in making the final
determination."

K.S.A. 44-519 provides:

"No report of any examination of any employee by a health care provider, as provided for in the
workers compensation act and no certificate issued or given by the health care provider making such
examination, shall be competent evidence in any proceeding for the determining or collection of
compensation unless supported by the testimony of such health care provider, if this testimony is
admissible, and shall not be competent evidence in any case where testimony of such health care provider
is not admissible."

The Board, in another case, ruled that K.S.A. 44-510e(a) supersedes K.S.A. 44-519. See McKinney v. General Motors Corp., 22 Kan. App. 2d 768, 771, 921 P.2d 257
(1996). In our view, that statement is overly broad. Rather, it appears to us that K.S.A.
44-510e(a) merely creates a narrow exception to the general rules of K.S.A. 44-519.
While a medical report must normally be supported by a health care provider's
testimony, the administrative law judge may consider the report of an independent
health care provider regarding a claimant's functional impairment without the health
care provider's supporting testimony. See McKinney, 22 Kan. App. 2d at 772.

However, the plain language of K.S.A. 44-510e(a) does not allow an
administrative law judge to routinely consider an independent health care provider's
opinion on issues beyond that of functional impairment without supporting testimony.
The Board properly ruled the administrative law judge should not have considered Dr.
Bieri's opinion regarding liability apportionment.

Like the Board, we express no opinion as to whether the administrative law
judge, pursuant to K.S.A. 44-510e(a), may specifically request an independent health
care provider to state an opinion on matters beyond functional impairment and consider
that opinion without the supporting testimony of the independent health care provider.

Frito-Lay argues the Fund waived any objection to the administrative law judge's
consideration of the entirety of Dr. Bieri's report by not objecting to the administrative
law judge. But under our reading of the statutes, no one could have introduced the
entirety of Dr. Bieri's report without supporting testimony. The Fund became aware of
the administrative law judge's misreading of the statutes only after the administrative
law judge rendered his opinion. The Fund has not waived its position.

Under the facts of this case, that portion of Dr. Bieri's report which went beyond
functional impairment was "inadmissible" under specific workers compensation statutes
without his supporting testimony.